From: Vrooman Gary L
Sent: Mon Feb 11 16:10:56 2013
To: PERRY Marylou
Cc: PICKERELL Loretta
Subject: RE: DEQ question for IGA with Metro
Importance: Normal
I think the fundamental question is whether Metro and the city are acting as a “representative” of DEQ or whether they are acting for their own purposes. And whether the city and metro are “involved in carrying out the requirements of ORS chapter 459 and 459A.”
ORS 459A.050(7) says:
“Information collected under subsection (6) of this section, as it relates specifically to the entity’s customer lists or specific amounts and types of materials collected or marketed, shall be maintained as confidential by the department and exempt from disclosure under ORS 192.410 to 192.505.”
OAR 340-090-0120(4) says:
“Access to information submitted as confidential under OAR 340-090-0100(5) and (6) shall be limited to employees and representatives of the Department involved in carrying out the requirements of ORS Chapter 459 and 459A.”
So, there is a statutory obligation for DEQ to keep the information confidential. DEQ’s rules interpret that obligation to allow “representatives” of DEQ to have access to the information in order to carry out the requirements of ORS 459 and 459A. If metro and the city are not acting as “representatives” of DEQ in “carrying out the requirements of ORS 459 and 459A,” the statute and rules suggest that DEQ should not be providing them the information. It’s not clear to me what “representational” purpose metro is getting this information for. I also can’t tell based on this information whether the city’s “budgeting and planning purposes” could be reasonably construed as something that is being done as a representative of DEQ. It seems a little questionable at first glance but there could be a lot I’m missing there.
Assuming the city and metro are acting as a DEQ representative, I would think DEQ would want some type of written documentation of that relationship (whether through an IGA or something else) that included a commitment on the part of the city/metro to keep the information confidential, as required by ORS 459A.050(7) and DEQ rules. That said, I don’t think not having such an agreement would prevent DEQ and the city/metro asserting that the information is confidential. The confidentiality of the information could be asserted based on the statute regardless. However, there would appear to be nothing on the side of the city/metro requiring them to keep the info confidential, absent some kind of agreement with DEQ, and it would be perhaps less apparent that they were acting as a representative of DEQ (assuming they are) in their possession of the information, if there was no written agreement to that effect.
To summarize and answer your specific questions:
-can DEQ continue to provide this data to Metro and begin to provide this data to the City of Portland without an IGA?
Yes, if the city and metro are representatives of DEQ involved in carrying out the requirements of ORS Chapter 459 and 459A. No IGA would be needed to assert the confidentiality of the information but DEQ might want one (or some other written agreement) anyway, as described above.
If so, will this data still be protected from disclosure to others?
Yes, but note that absent an agreement with DEQ there would appear to be nothing requiring the city/metro to keep the information confidential.
And, by providing this data to Metro and the City of Portland, is DEQ violating any confidentiality requirements in the rule?
As stated above, the statutes require DEQ to keep the data confidential. DEQ rules interpret this requirement to allow access to the information to employees and representatives of the Department involved in carrying out the requirements of ORS Chapter 459 and 459A. If DEQ is allowing access to the information in accordance with its rule, it would be highly unlikely to be found in violation of any confidentiality requirements.
Please let me know if you want any more information on any of this or if you want to discuss.
Thanks,
Gary
Gary Vrooman
Assistant Attorney General
Natural Resources Section
Oregon Department of Justice
From: PERRY Marylou [mailto:PERRY.Marylou@deq.state.or.us]
Sent: Wednesday, February 06, 2013 1:24 PM
To: VROOMAN Gary L
Cc: PICKERELL Loretta
Subject: FW: DEQ question for IGA with Metro
Gary –
DEQ’s material recovery survey collects recycling data – the rules exempt this data from disclosure and direct DEQ to hold it confidential. The access is limited to employees and representative of the Department. Prior to 2009, DEQ and Metro had an IGA – see below – that listed one specific Metro employee as a DEQ representative. [Citation - OAR 340-090-120 (1) thru (5)]
After this e-mail below, some further follow-up was made and the IGA renewal was not deemed necessary. DEQ continued providing the detailed data to Metro as a DEQ representative without such an IGA.
Now, the City of Portland requests the same level of access to this recycling data for budgeting and planning purposes. They are willing to hold the information confidential.
The questions – can DEQ continue to provide this data to Metro and begin to provide this data to the City of Portland without an IGA? If so, will this data still be protected from disclosure to others? And, by providing this data to Metro and the City of Portland, is DEQ violating any confidentiality requirements in the rule?
Please let me know if you need any additional information before giving an opinion on this issue. Thank you.
Mary Lou Perry
SW Specialist
503-229-5731
From: EDELMAN Larry
Sent: Monday, December 01, 2008 10:20
To: PERRY Marylou
Cc: PICKERELL Loretta
Subject: RE: DEQ question for IGA with Metro
If you can specify the purpose of providing the continued limited access to Metro as a DEQ "representative" for purposes of OAR 340-090-0120, the arrangement can probably be continued without violating the statute or rule. (Even if Metro were not considered a DEQ "representative", disclosure of the data to Metro would not necessarily waive a statutory exemption from disclosure under a Public Records Law request where DEQ's provision of the data to Metro pursuant to an IGA is a limited selective disclosure for a specified purpose). From Metro's standpoint it should also be able to withhold disclosure of the data (obtained from DEQ) under the statute and Public Records Law.
-----Original Message-----
From: PERRY Marylou
Sent: Wednesday, November 26, 2008 10:20 AM
To: Edelman Larry
Cc: PICKERELL Loretta
Subject: DEQ question for IGA with Metro
Larry-
Currently, DEQ has an IGA with Metro regarding development of some database enhancements and Metro providing us some funding. The system enhancement part is done and the IGA will expire at the end of this year. There is a provision that allows Metro staff to access confidential information provided to DEQ on the Material Recovery Survey forms. The IGA states (in part):
(DEQ Agreement No. R032-03 and Metro Contract #925029) Statement of Work par 2, 3 & 4 - DEQ shall also provide specific Metro employees with access to the new commingling module and to the new SWIMS computer systems in order to evaluate and test the system that is developed. This access shall be provided at DEQ Headquarters. DEQ shall provide space and computer access to specific metro employees for conducting this evaluation. DEQ shall also provide access to the specific Metro employees to all recycling data collected under the recovery survey, including data on recycling processors and the commingled tonnage that they handle, and shall waive fees for copies.
Metro shall:
1) Maintain strict confidentiality of all information required to be held confidential under Oregon Revised Statutes 459A.050(7), and may release this information only in aggregated form.
2) Take all reasonable steps to maintain the confidentiality of copies of survey forms, computer records, and summaries or data developed from the forms or computer records that identify the companies surveyed, which Metro received for DEQ or develops from information received from DEQ.
3) Steve Apotheker, Metro’s project officer for this project, shall have access to all company-specific data and data summaries generated by the SWIMS program. Metro’s Manager, Waste Reduction & Outreach Division, Solid Waste & Recycling Department shall provide to DEQ the names of additional designated staff who will be the only Metro staff to have access to the computer data or survey forms and others summaries of data developed from this information that identify companies surveyed.
I would like to enter into another IGA with Metro to allow them continued access to our confidential information in just the manner stated above.
My question - is that still allowed under the statute? Specifically, can Metro still be considered a “representative of the Department” if we develop the IGA solely to provide them access to our confidential information without a computer system enhancement project involved?
The citations are: ORS 459A.050 (7) and OAR 340-090-0120 (1) through (5)
Thank you.
Mary Lou Perry
SW Specialist
503-229-5731
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